BILL ANALYSIS Ó SB 274 Page 1 Date of Hearing: June 18, 2013 ASSEMBLY COMMITTEE ON JUDICIARY Bob Wieckowski, Chair SB 274 (Leno) - As Amended: May 14, 2013 SENATE VOTE : 28-11 SUBJECT : Family Law: Parentage KEY ISSUE : SHOULD A COURT BE PERMITTED TO FIND THAT A CHILD HAS MORE THAN TWO LEGAL PARENTS IN THE VERY LIMITED INSTANCE WHERE MORE THAN TWO INDIVIDUALS MEET THE EXISTING STANDARD TO BE THE CHILD'S LEGAL PARENTS AND NOT DOING SO WOULD BE DETRIMENTAL TO THE CHILD? FISCAL EFFECT : As currently in print this bill is keyed fiscal. SYNOPSIS Legal parenthood can be established in a number of different ways, and as a result, in limited situations it is possible for more than two people to claim legal parentage of a child. The Family Code provides that where two or more presumptions of paternity arise that are in conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. A recent Court of Appeal court held that when more than two people meet the legal definition of a parent, a court may recognize only two of them as legal parents. (In re M.C. (2011) 195 Cal.App.4th 197.) This bill, sponsored by Children's Advocacy Institute and National Center for Lesbian Rights, instead provides that where there are more than two people who have established claims or presumptions of parentage under existing California law, the court may recognize more than two parents if the court finds that recognizing only two parents would be detrimental to the child. This bill is very similar to, though more narrowly tailored than, last year's SB 1476 (Leno), which passed the Legislature, but was vetoed by the Governor because of concern of possible unintended consequences. The governor requested additional time to consider all the implications of the bill. This bill is supported by the California Judges Association, LGBT organizations, children's advocacy groups and some family law practitioners, who write that the bill "protects children SB 274 Page 2 from harm by preserving the bonds between children and their parents, rather than preventing courts from recognizing that children may sometimes have more than two parents where severing one of these bonds would be detrimental to the child. Recognition of legal parenthood also gives the child the right to support from all her parents, as well as access to health insurance, benefits, and inheritance rights." Other family law practitioners, while supportive of the bill's intentions, oppose it, arguing that it could harm children who may be pawns in their parents' feuds: "It does not take much to understand how much worse such conflict would be for the child with three adults, let alone four or more. Our focus is the child. It appears the bill's focus is really the adults who feel they should be able to acquire the label/title of "parent." . . . SB 274 proposes what is arguable a virtual 'sea change' in our culture as to the role of a parent and the resulting expectations." However, this bill, by its very terms, focuses specifically on the interests of the child, by allowing for recognition of more than two parents only if a court finds that recognizing only two parents would be detrimental to the child. SUMMARY : Permits a court, in appropriate cases, to find that a child has more than two legal parents. Specifically, this bill : 1)Provides that nothing in the Uniform Parentage Act (UPA) should be construed to preclude a finding that a child has a parent-child relationship with more than two parents. Provides that every reference to parent in statutes, regulations, rules, policies and case law shall be interpreted to apply to every parent of a child who is found to have more than two parents. 2)Unless a court orders otherwise, provides that a presumption of paternity is rebutted by a judgment establishing paternity by another person. 3)Provides that, in an appropriate action, a court may find that more than two persons with a claim for parentage are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment, requires the court to consider all relevant factors, including the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical and psychological needs for a substantial period of time. Provides that a finding of SB 274 Page 3 detriment to the child does not require a finding of unfitness of any person. 4)Provides that in any case where a child has more than two legal parents, the court shall allocate custody and visitation among the parents based on the best interest of the child, including, but not limited to addressing the child's need for continuity and stability by preserving established patterns of care and emotional bonds. States that the court may order that not all parents share legal or physical custody of the child, if the court finds that would not be in the child's best interest, as provided. 5)Provides that the statewide, uniform child support guideline applies in any case in which a child has more than two legal parents, and the court shall apply the guideline by dividing the child support obligations among the parents based on income and the amount of time each parent spends with the child, as provided. Permits the presumption that the guideline is correct to be rebutted if the court finds that application of the guideline would be unjust or inappropriate due to special circumstances, as provided. In that case, requires the court to divide the child support obligations among the parents in a manner that is just and appropriate based on income and time spent with the child. 6)Provides that # 5), above, shall not be construed to require reprogramming of the California Child Support Automation System, a change in the child support guideline, or a revision in any Department of Child Support Services' regulations, policies, procedures, forms or training materials. 7)Permits the termination of parental duties and responsibilities for existing parents of a child to be adopted to be waived by agreement of the existing parents and the prospective adoptive parents. 8)Makes the following legislative findings: a) Most children have two parents, but in rare cases children may have more than two people who are that child's parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child and courts must protect children from this harm. b) The purposes of the bill is to abrogate the holding in SB 274 Page 4 In re M.C. (2011) 195 Cal.App.4th 197, insofar as that case held that when more than two people claim parentage under the UPA, courts are prohibited from recognizing more than two of these people as parents. c) This bill does not change the requirements for establishing parentage under the UPA. d) It is the intent of the Legislature that this bill only apply in rare cases where a child truly has more than two parents. EXISTING LAW : 1)Establishes the California UPA. Defines a parent and child relationship as the legal relationship existing between a child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. The term includes the mother and child relationship and the father and child relationship. (Family Code Section 7600 et seq. Unless stated otherwise, all further statutory references are to that code.) 2)Provides that the child of a wife who is living with her husband, who is not sterile, is conclusively presumed to be a child of the marriage, except as provided. (Sections 7540-41.) 3)Defines a man as a presumed father if, among other things: (a) He was married to the child's mother and the child was born within 300 days of the marriage; (b) he attempted to marry the child's mother; or (c) he holds the child out as his own. Requires that these presumptions be applied gender neutrally. (Section 7611; Elisa B. V. Superior Court (2005) 37 Cal.4th 108.) 4)If two or more paternity presumptions conflict with one another, the presumption that is founded on the weightier considerations of policy and logic controls. Provides that a presumption of parentage under Section 7611 is rebutted by a judgment establishing paternity of the child by another person. (Section 7612.) 5)Provides that paternity may be established by voluntary declaration for unmarried parents, or through a civil action brought by any interested party, as specified. (Sections 7630, 7570 et seq.) SB 274 Page 5 6)Provides that domestic partners have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations and duties under law as are granted to and imposed on spouses. (Section 297.5.) 7)Provides that a parent and child relationship between the child and the mother may be established by proof of her having given birth to the child. Provides that a parent and child relationship between the child and an adopted parent may be established by proof of adoption. (Section 7610.) 8)Outlines factors the court shall consider in determining the best interest of the child, including, among others, the health, safety, and welfare of the child; any history of abuse by one parent or any other person seeking custody against another child, the other parent, a spouse or significant other; the nature and amount of contact the child has with both parents; and any other factors the court finds relevant. (Section 3011.) 9)Provides that custody of a child should be granted in the following order of preference: to parents jointly; to either parent taking into consideration which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent; to the person in whose home the child has been living in a wholesome and stable environment. Allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child. (Section 3040.) 10)Provides a formula for calculating child support, and provides a rebuttable presumption that the formula results in a correct amount. This presumption can be rebutted by, among other factors, the fact that application of the formula would be unjust or inappropriate due to special circumstances. (Section 4053 et seq.) COMMENTS : Legal parenthood can be established in a number of different ways. A man is conclusively presumed to be the father of a child if he was married to, or in a registered domestic partnership with, and cohabitating with the child's mother, except as specified. A man who receives a child into his home and holds the child out as his own is also presumed a father of the child. A man who signs a voluntary declaration of paternity SB 274 Page 6 is presumed to be the legal father of a child. While the statutory scheme uses the word "father," the presumptions must be applied gender neutrally, so they apply to mothers as well, see, e.g., Elisa B. V. Superior Court (2005) 37 Cal.4th 108, and the Committee's AB 1403 (Judiciary), now with the Senate Judiciary Committee, does just that. Because of the presumptions of paternity available under law, it is possible, in very limited situations, for more than two people to claim parentage of a child. The Family Code provides that where two or more presumptions arise that are in conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. In 2011 a Court of Appeal held that when two or more people meet the legal definition of a parent, a court may recognize only two of them as legal parents. (In re M.C. (2011) 195 Cal.App.4th 197.) This bill instead provides that where there are more than two people who have established claims or presumptions of parentage under existing California law, the court may recognize more than two parents, but only if it would be detrimental to the child not to do so. In support of this bill, the author writes: SB 274 protects children from harm by preserving the bonds between children and their parents, rather than preventing courts from recognizing that children may sometimes have more than two parents where severing one of these bonds would be detrimental to the child. Recognition of legal parenthood also gives the child the right to support from all her parents, as well as access to health insurance, benefits, and inheritance rights. Recognizing these families can also reduce the state's financial responsibility for the child because all parents have the obligation to support the child. In dependency actions, if a child has more than two parents, legal acknowledgment of more than two of those parents may keep the child out of foster care by giving the court more options for placement. . . . Preventing courts from ever recognizing that a child has more than two parents can have disastrous emotional, psychological, and financial consequences for a child, who may be separated from one or both of the parents he or she has always known. . . . SB 274 Page 7 SB 274 . . . gives courts the flexibility they need to protect the interests of children who truly have more than two parents. It only applies if there are more than two people who have claims to legal parentage under existing law and the court finds that not recognizing more than two parents would be detrimental to the child. The bill would not apply to a boyfriend or girlfriend of a parent who has been in the child's life for a short time, or to a relative caregiver who provides periodic care. Rather, it only provides that where there are more than two people who have an otherwise valid legal claim to parentage under existing California parentage law, the court can, but is not required to, recognize more than two people as legal parents of the child if it would otherwise be detrimental to the child. Establishing Parentage Under the Uniform Parentage Act : The UPA was passed in 1975 to extend the parent and child relationship equally to every child and to every parent, regardless of the marital status of the parents. The UPA defines "parent and child relationship" as "the legal relationship existing between a child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations." The term includes both mother and child, and father and child relationships. Insofar as practical, the UPA is to be interpreted to apply to both father-child and mother-child relationships. In 2005, the California Supreme Court found a parent-child relationship in a trio of cases involving same-sex parents, one with a genetic link to the child and two without. In one case, a woman provided the ova to the other woman who gave birth to twins who were to be raised in the women's joint home. (K.M. v. E.G. (2005) 37 Cal.4th 130.) In another case, the court established parentage for a woman who had neither genetic link nor given birth to twins, but who received the children into her home and held them out as her own. (Elisa B. v. Superior Court (2005) 37 Cal.4th 108.) In the third case, a couple had secured a judgment that they were the only legal parents of a child who was born to and had a genetic link to one of the women. The court estopped that woman from disavowing the validity of the judgment to which she had stipulated, thus recognizing the parentage of the other woman who had neither given birth to, nor had a genetic link to, the child. (Kristine H. v. Lisa R. SB 274 Page 8 (2005) 37 Cal.4th 156.) None of these cases involved the possibility of more than two parents. A Court of Appeals Refused to Recognize More Than Two Parents, but Invited the Legislature to Do So . The need for greater flexibility in the number of legal parents was clarified in In re M.C. (2011) 195 Cal.App.4th 197. In that case, a juvenile court found that three parents were a child's presumed parents - the biological mother, the child's presumed mother, by virtue of her marriage to the biological mother, and the biological father, who conceived the child with the biological mother during a premarital relationship. The child was in foster care as a result of the biological mother's involvement in the stabbing of the child's presumed mother. The juvenile court recognized all three parents, hoping to place the child with the father, but the court of appeals reversed, potentially depriving the child of a loving father, writing that such recognition lies, more appropriately, with the Legislature: M.C. and the amicus curiae invite us to employ this case as a vehicle to highlight the inadequacies of the antiquated UPA to accommodate rapidly changing familial structures and the need to recognize and accommodate novel parenting relationships. We agree these issues are critical, and California's existing statutory framework is ill equipped to resolve them. But even if the extremely unusual factual circumstances of this unfortunate case made it an appropriate action in which to take on such complex practical, political and social matters, we would not be free to do so. Such important policy determinations, which will profoundly impact families, children and society, are best left to the Legislature. (Id. at 214.) Other States, and Even California, Have Recognized More Than Two Parents in Specific Situations : Currently, several states have recognized that there are situations where a child can have more than two people in his or her life with the rights and responsibilities of parents. In 2007 a Pennsylvania court upheld an award of partial custody to a biological mother's same-sex partner, with partial custody to the biological mother and sperm donor, who had been involved as a parent since infancy. The court held that all three had an obligation to support the child. (Jacob v. Shultz-Jacob 923 A.2d 473 (Pa. Super. 2007).) A Maine court found that a child may have a non-biological, de facto parent with parental rights and SB 274 Page 9 responsibilities in addition to two biological parents. (C.E.W. v. D.E.W. (Me. 2004) 845 A.2d 1146, 1149-51.) A Delaware statute recognizes three types of legal parents: a natural parent, an adoptive parent, and a de facto parent. Under Delaware code, a de facto parent is a person who, with the support and consent of the child's parent or parents, fostered a parent-like relationship with the child, exercised parental responsibility for the child, and acted in a parental role for a length of time sufficient to have established a bonded and dependent relationship with the child that is parental in nature. (Del. Title 13, Sec. 8-201.) Similarly, the District of Columbia recognizes that a de facto parent has the same rights and responsibilities of parents. (DC ST Sec. 16-831.01.) Finally, Louisiana specifically recognizes situations of dual paternity, thus giving parental responsibilities to three parents, the mother, the presumed father based on marriage and the biological father. (See Smith v. Cole (1989 La.) 553 So.2d 847.) Under the Full Faith and Credit Clause, California is required to honor the acts and judicial proceedings of the courts of these other states. As a result, California courts will eventually have to recognize court orders with more than two parents. Additionally, California law now recognizes tribal customary adoption, which can permit a child to have four parents. In an aim to protect both Native American children and their interests in having tribal membership and legal connections to the tribal community, tribal customary adoption provides that parents' rights need not be terminated upon adoption of the child. Accordingly, a Native American child may have up to four legal parents - two natural parents and two adoptive ones. While cases involving more than two parents are, almost by definition, complicated and will require courts to balance many competing interests, courts must already do so today. This bill simply expands this, in very narrow situations when necessary to prevent detriment to the child. The opposition raises concern about the lack of an upper limit on the number of parents permitted under the bill, but the number of cases affected by this bill - and the number of parents that may be recognized in any particular case - is extremely limited by the provisions of the bill itself . The Association of Family Conciliation Courts, one of the bill's opponents, is concerned that, while the bill has been revised to SB 274 Page 10 "narrow and limit the number [of parents that a child may have] to some degree[,] there is nothing in the statute which would prohibit the courts from allowing more than three 'parents' for a child, whether at the same time or at separate periods in the child's life." This bill, however, does not change existing law as to who may be a presumed parent. To be found a parent under the bill, a person must qualify as a presumed parent under existing law. Most stepparents and boyfriends or girlfriends will not meet the requirement that they not only take the child into their home, but also hold the child out as their own. That second part requires telling friends, family and officials that the child is their own - not their step-child, not their girlfriend's child, but their own child. Additionally, existing law anticipates the situation where two or more presumptions of paternity conflict under the Family Code, and provides the following guidance: the presumption which on the facts is founded on the weightier considerations of policy and logic controls. Courts therefore, under current law, apply a critical analysis to situations where more than two presumptions exist. This bill does not limit that analysis. It simply allows courts the flexibility to find that more than one presumed parent can be a parent. The bill is even more limiting. It is not enough to qualify as a presumed parent. Last year's SB 1476 would have authorized a court to find more than two parents if "required to serve the best interests of the child." Stakeholders, however, raised the concern that it may not be clear to courts whether to apply a standard "best interests" analysis or the heightened, "as required to serve the best interests" analysis. This bill now requires that when more than two people have a claim to parentage the court may only grant parentage to more than two parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment, the court is required to consider all relevant factors, including the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical and psychological needs for a substantial period of time. No other parentage determination considers the child's needs. The other determinations are all based on the presumed parent's actions. This bill puts the interest of the child above all else. Lastly, the bill states the clear legislative intent that it be applied only in rare cases where a child truly has more than two SB 274 Page 11 parents. This clear statement of legislative intent will provide guidance to courts regarding the limited reach of the bill and the very small number of cases that will meet the legal requirements for more than two parents. Bill Addresses Family Law Concerns : While more than two parents may be highly desirable in a dependency case, where more loving parents may help keep a child out of a group home or other foster care placement, multiple parents in a family law proceeding, where warring parents are fighting for custody, could be more troublesome. This bill addresses that concern in two ways. First, as discussed above, it allows a court to recognize more than two parents only when it would be detrimental to the child not to do so. The bill provides courts with guidance on finding such detriment, by requiring the court to consider all relevant factors, including the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical and psychological needs for a substantial period of time. Second, this bill recognizes that concern and provides that the child's best interest, including the need for stability for the child, must guide custody determinations. Moreover, the bill specifically states that not all parents may share legal or physical custody of the child. While this is true in all custody cases, this statement should provide guidance to family courts to ensure that the child has stability and that if legal or physical custody is shared with too many parents, such stability may be lacking. Clarification regarding termination of parental rights : This bill also codifies the holding in Sharron S. v. Superior Court (2003) 31 Cal.4th 417 that allowed second parent adoptions. A second parent adoption is a procedure where a second parent adopts the child without terminating the rights of the existing parent, similar to a stepparent adoption. Sharon S. held that when a birth mother's partner sought to become a second parent through adoption, the parties may waive the termination of the existing parent's rights under Family Code Section 8617. This bill simply codifies that holding and applies it to situations where the child may have more than two parents. Child Support Guideline Calculation : It is anticipated that cases with more than two parents will be extremely rare and very fact specific, and thus can be calculated outside of the SB 274 Page 12 statewide guideline. This bill provides for that flexibility by specifically permitting a departure from the child support guideline in these cases. However, this bill still requires that a guideline calculation be completed prior to departing from the guideline, as required by federal law. To do so, the guideline can be run in a multi-step process that involves first calculating all parents' net income, then running the guideline program with the high earner as one parent and the income and time share of remaining parents combined as the other parent in the program. The process is then repeated for the remaining parents (with the highest earner excluded), with the highest earner of that smaller group listed as the high earner and the parents remaining as the other parent (with time shares adjusted appropriately). While this may be cumbersome, it, notwithstanding opponent's arguments to the contrary, produces a child support award using the guideline and ensures that California is in compliance with federal requirements. Similar Bill Vetoed Last Year : Last year a similar bill, SB 1476 (Leno) passed the Legislature, but was vetoed by the Governor, who wrote: "I am sympathetic to the author's interest in protecting children. But I am troubled by the fact that some family law specialists believe the bill's ambiguities may have unintended consequences. I would like to take more time to consider all of the implications of this change." The author and the sponsors have worked with family law attorneys over the last year to tighten the bill and limit any ambiguities of the bill. Significantly, this bill now provides that all of the rights and responsibilities of parentage arising under state law, administrative regulations, court rules, government policies, common law, and any other provision or source of existing law apply equally to every legal parent where a child is found to have more than two parents. Thus, this bill clarifies that any source of existing law that is worded to apply to only two parents must be applied equally to more than two parents. Additionally, the bill tightens provisions and provides guidance to courts in finding whether a child has more than two parents, and in awarding custody, visitation, and support in the event that the court has made that finding. ARGUMENTS IN SUPPORT : Supporters include the California Judges Association, American Academy of Matrimonial Lawyers, Northern California Chapter, Children's Advocacy Institute, the National SB 274 Page 13 Center for Lesbian Rights, Equality California, and Legal Services for Children. In support of the bill, supporters write: While most children have at most two parents in their lives, some children have more than two people who act as parents in every way. Courts face a diversity of family circumstances, but state law has not adapted to the reality of those circumstances. For example, state law has been interpreted to prevent courts from ever recognizing more than two people as a child's parents. This inflexibility can have disastrous emotional, psychological, and financial consequences for a child who is separated from a loved one he or she has always known as a parent. Courts need more tools to protect the best interests of children. SB 274 protects children by recognizing the bonds they share with their parents and the legal and emotional security those bonds provide. Recognizing legal parenthood gives a child the right to support from his or her parents, reduces the state's financial responsibility for the child, and keeps children out of foster care by giving courts more options for placement. Likewise, if a family is in distress, otherwise legally valid parental relationships should not be artificially severed and the already-at-risk child should not be placed in foster care when there is a legally satisfying alternative: another parent available to care for the child. SB 274 is particularly important to the LGBT community because of how LGBT people become parents and build families, which can involve any combination of blending families, adoption, fostering and assisted reproduction. On occasion, this can be present situations where recognizing more than two legal parents is the best way to protect the best interest of the children involved and their relationships with the people they have always known as their parents. SB 274 does not change the definition of parenthood, or allow temporary caretakers to be considered parents. It merely provides that when evidence shows that more than two people meet the existing legal definition of a child's parent, the court may recognize those individuals and their legal obligations if recognizing only two parents would be SB 274 Page 14 detrimental to the child. Adds the Children's Advocacy Institute: "Children need parents, period. If what we as a society care about when adjudicating parentage is honoring the bonds that bind children and their parents, ensuring the child stays out of foster care, and - most of all - conforming our laws and legal processes to what is 'required to serve the best interest of children,' then our laws should not arbitrarily prevent judges from being able to use their judgment." ARGUMENTS IN OPPOSITION : The Capitol Resource Institute writes in opposition: "Children thrive in consistent settings and in homes with their biological mother and father, or with adoptive parents, being male and female role models. This bill only serves to appease the adults and would cause chaos in the life of the child." The Association of Family Conciliation Courts - California (AFCC) begins their opposition by noting the author's and sponsors' efforts to address AFCC's concerns from the previous year and agrees that "the language in the bill is much improved over that of last year's bill." That being said, AFCC is still strongly opposed to the bill. The organization writes: We know how much a child can be, and often is, impacted by the conflict among the adults. We know how bad that conflict can be with only two parents . . . . It does not take much to understand how much worse such conflict would be for the child with three adults, let alone four or more. Our focus is the child. It appears the bill's focus is really the adults who feel they should be able to acquire the label/title of "parent." . . . SB 274 proposes what is arguable a virtual "sea change" in our culture as to the role of a parent and the resulting expectations. . . . We are convinced that this bill will be used primarily by heterosexual adults, mainly stepparents and grandparents. This bill is not just about handling current consensual situations, but represents a change in the legal landscape of "parenthood" and people's expectations and legal opportunities. . . . SB 274 Page 15 Children do not need the conflict that often results when two parents separate and disagree. They certainly do not need the conflict exponentially enhanced/increased as adults vie for a portion of their time and attention. Children are entitled to spend a good portion of their time with friends, at school and should not have to worry about having their time shared with multiple (as in three or more) adults who cannot agree on who the child should be with, what the child should be doing, where the child goes to school, what sports, what religion, etc. The author responds that far from being a "sea change" in family law, this bill "provides a limited approach to allow courts to recognize children who have more than two parents only when needed to protect a child from harm." In addition he notes that, this bill is not focused on protecting the rights of the adults, but "to the contrary, it is focused on the needs of children and may only be applied when necessary to protect a child from detriment." REGISTERED SUPPORT / OPPOSITION : Support Children's Advocacy Institute (co-sponsor) National Center for Lesbian Rights (co-sponsor) American Academy of Matrimonial Lawyers, Northern California Chapter Equality California California Judges Association Juvenile Court Judges of California Legal Services for Children Our Family Coalition Public Counsel Some individuals Opposition Association of Family and Conciliation Courts -- California Capitol Resource Institute Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334 SB 274 Page 16